The International Business Client and Nonimmigrant Visas
| Publication year | 1982 |
| Pages | 2545 |
| Citation | Vol. 11 No. 10 Pg. 2545 |
1982, October, Pg. 2545. The International Business Client And Nonimmigrant Visas
In recent years, the Front Range has witnessed a dramatic increase in the number of foreign-owned and operated businesses being established or expanded, accompanied by an equally dramatic increase in the number of aliens seeking admission to the United States to work in this region. For example, in fiscal 1978, the Denver office of the Immigration and Naturalization Service ("INS") processed a total of 320 employer petitions for nonimmigrant visas for temporary alien workers or trainees. The number was 445 in 1979, 505 in 1980 and 1,180 in 1981. Indications are that 1982 is well ahead of 1981, representing close to a five-fold increase in the yearly volume of such nonimmigrant business visas since 1978.(fn1)
For these companies and their foreign employees, the immigration and nationality laws of the United States, at best, are an unpleasant but necessary hurdle to overcome in enabling them to operate. At worst, they create a trap for the unwary practitioner and an insurmountable barrier to the alien or his employer which can frustrate a company's entire business plan, Attorneys who counsel such clients must augment their knowledge of business, tax, labor and other traditional business-oriented legal subspecialties with a firm grasp of the aspects of U.S. immigration law that can affect their clients, whether they be U.S. or foreign companies with foreign employees or individual foreign workers or investors.
The principal authorities governing U.S. immigration are the Immigration and Nationality Act of 1952 ("Act"),(fn2) certain regulations in the Code of Federal Regulations ("C.F.R."),(fn3) the Operations Instructions ("O.I.") of the INS, the Foreign Affairs Manual ("F.A.M.") of the U.S. State Department and published administrative and judicial decisions.
This article provides attorneys with a practical guide to the elements of immigration law relating to nonimmigrant visas for temporary stay in the U.S. that particularly affect foreign investors and business visitors, as well as foreign and domestic companies with alien employees. It discusses the following nonimmigrant visas: B-1 (business visitor), e-1/E-2 (treaty trader/investor), H-series (temporary workers and trainees) and L-1 (intracompany transferee) nonimmigrant visas. A second article will appear in a subsequent issue of The Colorado Lawyer which will review the process of obtaining permanent resident status in the U.S., with particular attention to the permanent resident visa preference categories most commonly available to foreign investors and employees, and will briefly discuss the labor certification process connected with immigration status. Proposed changes in U.S. immigration law embodied in legislation currently before the U.S. Congress which could significantly affect foreign investors, businesses and employees with respect to obtaining permanent resident status will also be discussed.
With certain exceptions, any foreigner must be in possession of a valid visa to obtain entry into the U.S. There are two principal kinds of visas--- nonimmigrant and immigrant, colloquially referred to as "temporary" and "permanent" because of the length of stay intended. Visas are normally stamped in the person's passport and can only be obtained outside the U.S. at a U.S. consulate, generally that nearest the alien's foreign residence. Unlike applications for immigrant visas, applications for nonimmigrant visas need not be processed by a consulate if the alien applicant is only physically present in, and not a resident of, that consular district.(fn4) Discretionary factors for accepting nonimmigrant visa applications include workload and whether the consular officer has reason to question why the person did not apply in his district or country of residence---"forum shopping" is discouraged.
Once an alien has obtained a valid visa to enter the U.S., he must be "inspected"
at the port of entry by an INS official, who will make an independent determination of the alien's qualifications to enter in that particular visa status and whether the alien is otherwise excludable under the Act.(fn5) If approved for entry by the INS border official, the alien is given a 3" x 5" piece of paper, called the Form 1-94, which is stapled to the page in his passport containing the visa stamp. The Form 1-94 shows the visa status under which the alien entered the country, the date of entry, and the date to which his period of authorized stay is granted for that particular entry. Especially in the cases of B-1 and E visa holders, this period of authorized stay is normally of shorter duration than the period of validity of the visa itself. If the person qualifies, extensions of the period of authorized stay can be obtained from the appropriate local INS office upon submission of an Application to Extend Time of Temporary Stay (Form 1-539). No matter how long the period of authorized stay which is set forth on the Form 1-94, an alien who leaves the U.S. can reenter only if in possession of a valid visa. Thus, if the relevant visa expires while the person is in the U.S., he must then renew or revalidate that visa outside the U.S. in order to reenter.(fn6)
Certain exceptions to the above entry procedures of significance to business persons concern nationals of Canada and Mexico. Nationals of Canada, and aliens having a common nationality with Canadian nationals (meaning citizens of most Commonwealth countries who are landed immigrants in Canada), are not required to have a visa issued by a consular post abroad and stamped in their passport in order to enter the U.S. temporarily.(fn7) Canadian nationals seeking entry in H (temporary worker or trainee) or L (intracompany transferee) status, however, must be the beneficiaries of approved petitions and present a valid Notice of Approval (Form 1-171C) at the time of entry.
Mexican nationals in possession of a valid border crossing card (Form 1-186) need no visa if they are seeking to enter the U.S. either as temporary visitors for business (B-1 visa) or pleasure (B-2 visa).(fn8) Aside from these two visa categories, however, Mexican nationals seeking to enter the U.S. temporarily must obtain the appropriate visa (e.g., H or L) from a U.S. consulate before seeking entry into the U.S.
Persons exempt from the requirement of first obtaining a visa for a particular nonimmigrant status as described above need only present themselves at the border for "inspection" at the point of entry. If deemed qualified for the particular nonimmigrant visa status and not otherwise excludable, they will be given an appropriate Form 1-94 which shows their status and the period of authorized stay.
Every alien seeking entry into the U.S. is presumed to be an intending immigrant unless he is exempt or proves to the satisfaction of both U.S. consular officers abroad who accept his visa application and the immigration officers who process his application for admission at the border that he is entitled to nonimmigrant status.(fn9) Unlike intending immigrants (those who seek to obtain permanent resident status in the U.S.), there are no numerical limitations on the number of nonimmigrants admitted into the U.S., but there are qualitative standards of various kinds which preclude entry to many persons. Essentially, these standards are designed to protect U.S. workers and to keep out individuals deemed unfit for entry. Some of these standards are incorporated into the system of nonimmigrant visa classifications discussed below. Other standards are applicable to both immigrants and nonimmigrants and exclude from entry such persons as those with physical or mental defects (e.g., retarded, insane, psychopathic, addicted to narcotics or diseased), those whose financial circumstances make it likely they would become public charges, persons convicted of crimes involving moral turpitude, prostitutes, polygamists, illiterates, stowaways, anarchists, communists, Nazi war criminals and spies.(fn10)
There are currently thirty-seven different types of nonimmigrant visas, falling into thirteen main categories, "A" through "M" (corresponding to various lettered subsections of § 101 of the Act). They cover such categories of nonimmigrants as diplomats, employees of foreign governments, tourists, UN employees, NATO officials, foreign officials, ship crewmen, students, media representatives, exchange visitors and fiancees of U.S. citizens, in addition to individuals qualified for business visas discussed in this article.(fn11)
The nonimmigrant visas of most use to traders, investors, foreign business persons and employers of aliens are the B-1, E-1, E-2, H-1 through H-3, and L-1 visas. These fall into two separate classes: non-petition (B-1 and E visas) and petition (H and L visas). Virtually all processing of non-petition visas takes place abroad directly at U.S. consulates, and usually takes one day. By contrast, application for a petition visa abroad must be preceded by the filing and approval of a petition within the U.S. at the appropriate INS district office (as described below) and can take months for approval.(fn12)
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